Fundamental Rights, as one of the most significant features of the Indian Constitution, form the cornerstone of Indian democracy. These rights are crucial for fostering justice, equality, and fraternity and safeguarding the individual against the arbitrary actions of the state. This article of Next IAS delves into the salient features, significance, scope, and criticisms surrounding these fundamental rights of Indian Constitution.
Meaning of Fundamental Rights
Fundamental Rights refer to a set of essential liberties and entitlements guaranteed to every citizen by the constitution of a country. These rights serve as the bedrock of individual freedom, protecting citizens from arbitrary state actions and ensuring basic human rights and freedoms. They are integral to upholding democracy, justice, and equality within a nation. They prevent the establishment of an authoritarian and despotic rule in the country. In short, they aim to establish ‘a government of laws and not of men’.
The Fundamental Rights are named so because they are guaranteed and protected by the Constitution, which is the fundamental law of the land. These rights are considered fundamental because they are essential for the all-round development, dignity, and well-being of individuals. It is because of their myriad significance that they have been described as the Magna Carta of India.
Fundamental Rights under the Indian Constitution
Articles 12 to 35 in Part III of the Indian Constitution provide for six Fundamental Rights. These rights are mentioned below:
- Right to equality (Articles 14–18)
- Right to freedom (Articles 19–22)
- Right against exploitation (Articles 23–24)
- Right to freedom of religion (Articles 25–28)
- Cultural and educational rights (Articles 29–30)
- Right to constitutional remedies (Article 32)
Originally, the Constitution provided for seven Fundamental Rights, including the six rights mentioned above and the Right to Property. However, the 44th Amendment Act, of 1978 removed the Right to Property from the list of Fundamental Rights. It was, instead, made a legal right under Article 300-A in Part XII of the Constitution. So at present, there are only six Fundamental Rights.
Salient Features of Fundamental Rights
The features of Fundamental Rights in the Indian Constitution are as follows:
- Some of these rights are available only to citizens, while others are available to all persons whether citizens, foreigners, or legal persons like corporations, companies, etc.
- These rights are not absolute but qualified, which means the state can impose reasonable restrictions on them. This balances individual liberties with societal needs.
- All these rights are available against the arbitrary action of the state. However, some of them are also available against the actions of private individuals.
- Some of these rights are negative in character as they place limitations on the authority of the State, while others are positive in nature as they confer certain privileges on individuals.
- These rights are enforceable by the courts, allowing citizens to seek legal remedies if their rights are violated. This ensures that individuals have access to justice and can hold the government accountable for its actions.
- These rights are protected and safeguarded by the Supreme Court. Hence, the aggrieved person can directly proceed to the Supreme Court without necessarily appealing against the judgment of the high courts.
- These rights are not considered sacrosanct or permanent. They can be amended by the Parliament through a constitutional amendment process, provided such amendments do not violate the basic structure of the Constitution.
- During a state of national emergency, certain rights can be suspended by the President, except those guaranteed under Articles 20 and 21.
- The Parliament can restrict or abrogate the application of these rights on the members of the armed forces, para-military forces, police forces, intelligence agencies, and analogous services (Article 33).
- During the operation of martial law in any area, the application of these rights can be restricted (Article 34).
- Most of them are directly enforceable, while others can be enforced based on a law specifically made to give effect to them. Only Parliament can enact laws regarding these rights to ensure uniformity across the nation (Article 35).
Fundamental Rights under the Indian Constitution – A Detailed Overview
The provisions related to the Fundamental Rights are mentioned in Articles 12 to 35 in Part III of the Indian Constitution. Below is a detailed overview of these provisions:
Definition of State (Article 12)
- Article 12 defines the term ‘State’ for Part III. Accordingly, the State includes the following:
- The Government and Parliament of India, that is, the executive and legislative organs of the Union government,
- The Government and Legislature of States, that is, the executive and legislative organs of the State government,
- All local authorities, that is, municipalities, panchayats, district boards, improvement trusts, etc.
- All other authorities, that is statutory or non-statutory authorities like LIC, ONGC, SAIL, etc.
The actions of all these agencies can be challenged in court for violating the fundamental rights of Indian Constitution.
Laws inconsistent with or in derogation of the Fundamental Rights (Article 13)
- Article 13 provides that all laws that are inconsistent with or in derogation of any of the fundamental rights shall be void.
- This provision under Article 13 expressively provides for the doctrine of judicial review.
- The power of Judicial Review has been conferred on the Supreme Court under Article 32 and the High Courts under Article 226.
- The term ‘law’ in Article 13 includes the following which can be declared void on the grounds of violating a Fundamental Right
- Permanent laws enacted by the Parliament or the State Legislatures,
- Temporary laws like ordinances issued by the President or the State Governors,
- Statutory instruments like any delegated legislation, ordinance, order, bye-law, rule, regulation, or notification.
- Non-legislative sources of law i.e. custom or usage having the force of law.
- Article 13 provides that a constitutional amendment is not a law and cannot be challenged on the ground of contravention of any of the Fundamental Rights. However, the Supreme Court in Kesavananda Bharati case 1973 held that a Constitutional Amendment can be challenged on the ground that it violates a fundamental right.
Right to Equality (Article 14 to Article 18)
- These provisions of the Indian Constitution ensure equal treatment and opportunities for all citizens before the law. This right includes the following
- Equality before Law and Equal Protection of Laws (Article 14) – This provision ensures that the state shall not deny to any person equality before the law or the equal protection of the laws within the territory of India. It prohibits arbitrary discrimination by the state and guarantees equal treatment under similar circumstances.
- Prohibition of Discrimination on Certain Grounds (Article 15) – This provision prohibits discrimination on grounds only of religion, race, caste, sex, or place of birth. It ensures that no citizen shall be subjected to any disability, liability, or restriction only on these grounds.
- Equality of Opportunity in Public Employment (Article 16) – This provision guarantees equality of opportunity in matters of public employment or appointment. It prohibits discrimination in these matters only on grounds of religion, race, caste, sex, descent, place of birth, or residence.
- Abolition of Untouchability (Article 17) – This provision abolishes untouchability and prohibits its practice in any form. It recognizes untouchability as a social evil and ensures the eradication of this discriminatory practice in Indian society.
- Abolition of Titles (Article 18) – This provision prohibits the state from conferring titles, except military and academic distinctions, on individuals. It also makes certain provisions regarding accepting any title, present, emolument, or office from or under any foreign State.
Right to Freedom (Article 19 to Article 22)
These provisions of the Indian Constitution safeguard various individual liberties and freedoms. This right includes the following:
- Protection of Six Rights (Article 19) – This article guarantees to all citizens the following six rights:
- Freedom of Speech and Expression (Article 19(1)(a)) – This provision grants citizens the freedom to express their views, opinions, beliefs, and convictions freely through speech, writing, printing, or any other mode. However, reasonable restrictions can be imposed by the state on grounds such as public order, defamation, incitement to offense, etc.
- Freedom of Assembly (Article 19(1)(b)) – Citizens have the right to assemble peacefully without arms. It includes the right to hold public meetings, demonstrations, and take-out processions, but does not include the right to strike.
- Freedom of Association (Article 19(1)(c)) – Individuals have the right to form associations, unions, or cooperative societies, enabling them to collectively pursue common interests or goals. However, reasonable restrictions can be imposed in the interest of public order, morality, or the sovereignty and integrity of India.
- Freedom of Movement (Article 19(1)(d)) – Every citizen has the right to move freely throughout the territory of India. Reasonable restrictions can be imposed on this right on the grounds of the interests of the general public and the protection of the interests of any scheduled tribe.
- Freedom of Residence (Article 19(1)(e)) – Citizens have the freedom to reside and settle in any part of India, allowing for geographical mobility and the exercise of individual choice in determining one’s place of residence.
- Freedom of Profession (Article 19(1)(g)) – Individuals have the right to practice any profession or to carry on any occupation, trade, or business of their choice, subject to certain restrictions imposed in the interest of the general public.
Note: Originally, the right to acquire, hold, and dispose of property was one of the fundamental rights enshrined in Article 19(1)(f) of the Indian Constitution. However, the 44th Amendment Act of 1978 removed this right from the list of fundamental rights and placed it under Article 300A as a constitutional right.
- Protection in Respect of Conviction for Offenses (Article 20) – It grants protection against arbitrary and excessive punishment to an accused person, whether a citizen, a foreigner, or a legal person. It contains three provisions in this regard:
- Protection against Retrospective Criminal Legislations (Article 20(1)) – Any individual can be convicted only for violation of a law in force at the time of commission of the act. Also, the person cannot be subjected to a penalty greater than that prescribed by the law in force at the time of the commission of the act.
- Protection against Double Jeopardy (Article 20(2)) – A person cannot be tried and punished again for an offense for which they have already been either acquitted or convicted.
- Protection against Self-Incrimination (Article 20(3)) – No person accused of an offense shall be compelled to be a witness against oneself.
- Protection of Life and Personal Liberty (Article 21) – This provision guarantees that no person shall be deprived of their life or personal liberty except according to the procedure established by law. This right is available to both citizens and non-citizens and serves as a cornerstone of individual rights.
- Right to Education (Article 21A) – This provision guarantees the right to free and compulsory education for children aged 6 to 14 years. It mandates the State to provide access to quality education, ensuring that every child has the opportunity to receive education without any discrimination. This provision was added by the 86th Constitutional Amendment Act of 2002.
- Protection Against Arrest and Detention (Article 22) – This provision ensures certain protections to persons who are arrested or detained, including the right to be informed of the grounds of arrest, the right to consult and be defended by a legal practitioner, and the right to be produced before a magistrate within 24 hours of arrest. It prevents arbitrary detention and ensures fair treatment of individuals in custody.
Right Against Exploitation (Article 23 to Article 24)
- These provisions of the Indian Constitution provide certain safeguards to protect people, especially vulnerable sections, from exploitation. Various rights included under this are:
- Prohibition of Traffic in Human Beings and Forced Labour (Article 23) – This provision prohibits human trafficking and forced labor. It makes such acts punishable offenses.
- Prohibition of Employment of Children in Factories (Article 24) – This provision prohibits the employment of children under the age of fourteen in any factory, mine, or other hazardous activities. However, it does not prohibit their employment in any harmless or innocent work.
Right to Freedom of Religion (Article 25 to 28)
- These provisions of the Indian Constitution guarantee individuals the freedom to profess, practice, and propagate the religion of their choice. It ensures secularism by mandating that the state maintain neutrality and treat all religions equally.
- Freedom of Conscience and Free Profession, Practice, and Propagation of Religion (Article 25) – This article says that all persons are equally entitled to freedom of conscience and the right to freely profess, practice, and propagate religion. The implications of these are:
- Freedom of conscience – Individuals have the freedom to shape their relationship with God and other creatures in whatever way they desire.
- Right to profess – To declare one’s religious beliefs and faith openly and freely.
- Right to practice – To perform religious worship, rituals, ceremonies, and exhibition of beliefs and ideas.
- Right to propagate – To transmit or disseminate one’s religious beliefs to others. However, it does not include a right to convert another person to one’s religion.
- Freedom to Manage Religious Affairs (Article 26) – This provision states that every religious denomination or its section shall have the following rights-
- Right to establish and maintain institutions for religious and charitable purposes,
- Right to manage its affairs in matters of religion,
- Right to own and acquire movable and immovable property, and
- Right to administer such property as per law.
- Freedom from Taxation for Promotion of a Religion (Article 27) – This provision prohibits the State from levying taxes for promoting or maintaining any particular religion or religious denomination. It upholds the principle of secularism and ensures that the State remains neutral in matters of religion, fostering equality and religious freedom for all citizens.
- Freedom from Attending Religious Instruction (Article 28) – It makes provisions for religious instruction in different categories of educational institutions, as described below:
- Institutions wholly maintained by the State- religious instruction is completely prohibited.
- Institutions administered by the State but established under any endowment or trust – religious instruction is permitted.
- Institutions recognized by the State- religious instruction is permitted on a voluntary basis i.e. with the consent of the person.
- Institutions receiving aid from the State- religious instruction is permitted on a voluntary basis i.e. with the consent of the person.
Cultural and Educational Rights (Article 29 to Article 30)
These provisions of the Indian Constitution safeguard the rights of minorities to conserve their culture, language, and script.
- Protection of Interests of Minorities (Article 29) – It provides that:
- Any section of citizens having a distinct language, script, or culture of its own, shall have the right to conserve the same.
- No citizen shall be denied admission into any educational institution maintained by the state or receiving aid out-of-state funds on grounds only of religion, race, caste, or language.
As noted by the Supreme Court, the use of the phrase ‘section of citizens’ in the Article means that it applies to minorities as well as the majority. Thus, the scope of this article is not necessarily restricted to minorities only.
- Right of Minorities to Establish and Administer Educational Institutions (Article 30) – This provision grants minorities (both religious as well as linguistic) certain rights, such as the right to establish and administer educational institutions of their choice, the right to impart education to their children in its own language, etc.
- It is to be noted that the protection under this provision is confined only to minorities (religious or linguistic) and does not extend to any section of citizens (as under Article 29).
Right to Constitutional Remedies (Article 32)
- It confers the right to remedies for the enforcement of the fundamental rights in case of violation of the same. It makes the following provisions regarding the same:
- The right to move the Supreme Court for the enforcement of the Fundamental Rights is guaranteed.
- The Supreme Court shall have the power to issue directions, orders, or writs
- for the enforcement of fundamental rights.
- The Parliament can empower any other court to issue directions, orders, or writs for the enforcement of fundamental rights.
- The right to move the Supreme Court shall not be suspended except as otherwise provided for by the Constitution.
- These provisions give the right to get the Fundamental Rights protected, making the Fundamental Rights real.
Armed Forces (Article 33)
- This provision empowers Parliament to enact laws that restrict or modify the application of certain fundamental rights for members of the armed forces, police forces, intelligence agencies, or similar forces tasked with the maintenance of public order.
- The objective of this provision is to ensure the proper discharge of their duties in the interest of national security and the maintenance of discipline among them.
Martial Law (Article 34)
- This provision provides for restrictions on fundamental rights during the operation of martial law in any area within the territory of India.
- However, the expression ‘martial law’ has not been defined anywhere in the Constitution.
Legislation to give effect to the provisions of this part (Article 35)
This provision specifies that Parliament alone has the authority to enact laws aimed at implementing certain fundamental rights. This ensures uniformity across India concerning the nature of these rights and penalties for their violation.
Significance of Fundamental Rights
The Fundamental Rights of the Indian Constitution are significant in the following respects:
- They form the bedrock of the democratic system and facilitate people’s participation in the politico-administrative process.
- They serve as bulwarks of individual liberty and the rule of law by keeping a check on the authoritarianism of the state.
- They lay down the foundation of social justice and ensure the dignity of individuals.
- They protect the interests of minorities and weaker sections, thus promoting social justice.
- They strengthen the secular fabric of the nation.
Criticism of the Fundamental Rights
- Excessive Limitations – They face numerous exceptions, restrictions, and qualifications, imposing restrictions on their scope and effectiveness.
- No Social and Economic Rights – The list lacks comprehensiveness, focusing primarily on political rights without including essential social and economic rights such as the right to social security, employment, rest, leisure, etc.
- No Clarity – There is a lack of clarity as a few terms are expressed vaguely and ambiguously without a clear definition, for example- ‘public order’, ‘minorities’, ‘reasonable restrictions’, etc.
- No Permanency – They are not sacrosanct or absolute, as the Parliament can curtail or abolish them, for example – the abolition of the fundamental right to property in 1978.
- Suspension during Emergency – The suspension of fundamental rights during a National Emergency, except for Articles 20 and 21, undermines the essence of democracy, posing a threat to the rights of millions of innocent individuals.
- Expensive Remedy – The judiciary bears the burden of safeguarding these rights from legislative and executive encroachments. However, the costly nature of the judicial process impedes ordinary citizens from effectively enforcing their rights through the courts.
- Preventive Detention – The provision of preventive detention (Article 22) undermines the essence of fundamental rights, granting excessive discretion to the State and infringing upon individual liberty.
- No consistent philosophy – The fundamental rights chapter lacks a coherent philosophical foundation. According to Sir Ivor Jennings, these rights are not grounded in any consistent philosophy, posing challenges for the judiciary in their interpretation.
Fundamental Rights represent the essence of Indian democracy, serving as the bulwark against arbitrary state actions and ensuring the protection and empowerment of its citizens. Despite criticisms and limitations, these rights stand as a beacon of justice, equality, and freedom, fostering a society where the dignity and rights of every individual are upheld and respected. As India continues its journey towards progress and development, the preservation and effective implementation of these rights remain imperative, guiding the nation towards a future rooted in democracy, inclusivity, and human rights.
Frequently Asked Questions
How many Fundamental Rights are there in the Indian Constitution?
There are a total of 6 Fundamental Rights in India.
Why are they called Fundamental Rights?
Fundamental Rights in the Indian Constitution are called fundamental because they are considered fundamental and essential for the well-being and dignity of individuals in a democratic society.
Why Right to Property is not a Fundamental Right?
The Right to Property was initially included as a Fundamental Right in the Constitution of India under Article 19(1)(f). However, it was later removed from the list of Fundamental Rights and reclassified as a legal right under the 44th Amendment Act of 1978.